In Austin, with the Legislature midway through a special legislative session, there’s little bipartisan agreement to be found. Even on issues where Republicans and Democrats can agree on the problem, they differ on solutions. Case in point: mail-in ballot fraud.
Lawmakers on both sides of the aisle say something should be done to better prevent, detect and punish people who abuse the mail-in ballot system and steal the votes of vulnerable seniors. But Republican legislative proposals to do that have drawn little support from Democrats.
Elections experts say when it comes to voter fraud, in-person fraud is rare. Most cases of fraud happen with mail-in ballots, which are more vulnerable to manipulation. When voters fill out their ballots in polling places, there are elections judges and poll watches who help ensure the vote’s integrity.
Difficult to detect
Jonathan White, who works on voter fraud cases in the Texas Attorney General’s office, says the mail-in ballot is more of an honor system, and that’s why it gets abused. He says prosecutors like him need more tools to tackle the problem.
“The ballot can be diverted, the ballot can be stolen, the ballot could’ve been fraudulently generated to begin with, it could have been harvested from the voter in a number of ways including outright theft, to just manipulating the voter and influencing them as to how to vote,” he says.
That’s especially an issue because, in Texas, only seniors, people with disabilities and folks who’ll be out of their home county on Election Day can apply for mail-in ballots.
White says he’s seen evidence of organized ballot harvesting schemes to fraudulently deliver votes for candidates by abusing the mail ballot system in counties large and small, from north Texas to the Rio Grande Valley. He said it mostly happens in smaller local elections and primaries where turnout is low.
“It’s a well-known secret in political circles that these folks exist, and if you want their services, you hire them,” he says.
In the past 15 years, the Texas Attorney General’s office has only won convictions in about a hundred cases of voter fraud. That’s out of tens of millions of votes cast in elections.
But White said those numbers don’t include local and federal prosecutions, or the cases that his small team hasn’t been able to get to. And then there are all the cases that never make it to a prosecutor’s desk, White says.
“Nine times out of 10, when you commit election fraud, you’re not going to be detected and reported. And nine times out of 10 when you’re reported, you won’t get investigated. And nine times out of 10 that you’re investigated, you won’t get prosecuted,” he says, though he acknowledged the statistics are figurative and not literal.
A history of court challenges
But where White sees voter fraud as a problem largely undetected and prosecuted, Myrna Perez from the Brennan Center for Justice at New York University says the statistics are clear: Voter fraud is extremely rare, though it is more likely to happen through mail-in ballots than in person.
Perez is one of the lawyers who sued the state over its voter ID law, which supporters say was intended to make elections less vulnerable to fraud. In April, a federal judge ruled the measure intentionally discriminated against black and Latino residents by making it harder for them to vote.
“In a climate where Texas has been found by multiple courts for making it harder for eligible Americans to vote and making it harder for illegal reasons, changes to the election system that constrict access should be very carefully and skeptically considered,” Perez says.
An investigation in Dallas
The push for legislation to combat mail-in ballot voter fraud in Austin comes as Dallas County is reeling from allegations of mail-in ballot fraud in May’s local elections. In the lead up to the election, some voters, mostly senior citizens, began reporting that mail-in ballots had shown up in the mail which they had never requested.
Officials sequestered and inspected more than 700 mail-in ballots for possible fraud and threw out nearly a hundred of them. It didn’t change the election results, but prosecutors opened a criminal case and have made one arrest so far in the ongoing investigation.
“The election fraud under investigation in Dallas is just the latest example,” said Gov. Greg Abbott when he called lawmakers back to Austin for a special session; mail-in ballot fraud was one of his 20 priorities. “I want legislation that toughens mail in ballot vote, and makes it harder for that crime to be committed in Texas,” he said.
While Dallas has drawn more headlines, there have been rumblings for nearly a year that the Texas Attorney General’s office is investigating mail ballot fraud in Tarrant County as well, though the office won’t confirm or deny those reports. It is perhaps unsurprising, then, that Gov. Abbot tapped two Tarrant County Republicans to draft the mail ballot legislation: Sen. Kelly Hancock from North Richland Hills and Rep. Craig Goldman from Fort Worth.
Goldman says tougher penalties will deter would-be offenders and encourage prosecutors to pursue these difficult cases.
“Right now, it’s a slap on the wrist, it’s a misdemeanor, and so no one is scared to go out and do it,” Goldman says. “Once we make it a felony, hopefully after this special session, then they’re going to think twice before they go do these sort of things.”
Goldman also wants to give election officials more tools to detect fraud when it happens and make it harder to commit in the first place. He said this is long overdue.
“I can’t speak to why we’ve done it in the past because I don’t know either, but I’m telling you that the special session gives us plenty of time to focus and perfect the legislation so we’re all on board to passing it” Goldman says.
Democrats pump the brakes
“This is too important of a topic to throw together some solution in two weeks and think that’s going to solve the problem,” Democratic Rep. Eric Johnson says. “It won’t.”
Johnson, who represents that west Dallas area where many of the allegedly fraudulent mail-in ballots originated, said he also wants to see changes to the election system to make it impossible to commit fraud in the first place, but he worries Republicans in Austin are rushing the process to score political points.
“Election law is very, very complicated,” he says. “All the pieces are so intertwined that when you do one thing to prevent anyone from being able to abuse a particular voting system, you can easily inadvertently disenfranchise an even larger number of people than you would prevent from being defrauded.”
Johnson has long been aware and concerned about people abusing mail-in voting, but said he thinks Gov. Abbott and Republicans in the Legislature are rushing to score political points. He wants to wait until the Dallas County voter fraud case is finished.
“We have a suspect who’s alleged to have stolen 700 absentee ballots pending a trial where we can possibly get all the information we want about how this works,” he says. “Why wouldn’t we wait and get that information and legislate around what we know?”
Republicans say they want bipartisan support, but, with clock ticking on the special session, they’re moving fast. The Senate passed a mail-in ballot fraud bill in a near-party line vote last week. A similar bill is moving through the House.
Lawmaking and litigation
Myrna Perez from the Brennan Center thinks the rush to get legislation over the finish line could be connected to ongoing litigation around the state’s voter ID law. She it looks to her like “litigation strategy masquerading as legislation.”
In April, when U.S. District Judge Nelva Gonzalez Ramos ruled that the state’s 2011 voter ID law was designed to disenfranchise poor black and Latino voters, she based her assessment in part on the state’s exemption for mail-in ballots from the law.
“The bill did nothing to address mail-in balloting, which is much more vulnerable to fraud,” Ramos wrote.
Perez says that’s why she’s skeptical about the push for mail-in ballot fraud legislation during the special session.
“Now that the case is moving along, Perez says, “they’re now trying to clean up a whole that they had undertaken in their strategy to try to deal with the Fifth Circuit [Court of Appeals] or the [U.S.] Supreme Court a bit more effectively.”
The Legislature did take a whack at one part of mail in ballot fraud this year. In an act of quiet bipartisanship that made few headlines, lawmakers passed legislation that basically turns nursing homes, which tend to generate a lot of mail-in ballot requests, into polling places with election judges and poll watchers.